By Ogova Ondego
Published February 22, 2021
Peter Kiggia of Wa-Esther Productions lived by writing and selling songs to musicians between 1979 and 1986 when he came to be known as a musician when he ventured into recording.
Kiggia, a composer, vocalist and producer, says Kenya has so many lyricists who sell their songs and even entire music albums to producers as they lack the means with which to record them.
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Kiggia says it is always wrongly assumed that the person recording music is also its composer.
“As such, the real music composers are never known,” says the musician who is best known for the hit, Wendo wa Cash Money, and who lets it known that he used to sell a song for as little as Sh500.
Kiggia argues that it is not as easy to make a name as a musician today where one is required to record a 12-song album as opposed to the past when a two-song gramophone record album was enough to make one a celebrity.
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“To make two albums today calls for 24 songs,” he says. “To meet this demand one is forced to buy some songs to combine with one’s own.”
This raises the question as to who between the lyricist on one hand and the musician and the producer on the other, owns music in Kenya.
Who owns the music when a producer buys the lyrics or an entire music album on which he slaps his name on a commodity he has bought from a musician?
To be a recording artist in today’s electronically-driven music industry may call just for the money with which to buy someone’s music and record it as one’s own or good vocals to give melody and rhythm to someone else’s work. The tracks can be easily produced mechanically in a studio using a programmed keyboard.
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A member of the board of Music Copyright Society of Kenya (MCSK), the only collective management organisation (CMO) in Kenya in 2000, says it is melody and rhythm which qualify an artistic piece as music.
“Any composition must be in this form for it to be recognised as music. Most people think writing words like those in poetry is music; it isn’t. Such writing can be protected as creative writing and not music which is a combination of melodic and rhythmic components.”
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If a person has an idea and asks someone else to compose it into music, then the idea, according to MCSK, belongs to the former.
He says music rights are diverse: the right to words, the right to accompaniment, the right to melody, the right to arrangement or the right to music.
“Words alone don’t make music as they can be expressed in various ways by various people,” he contends. “Some people sell their creation and only start complaining when things go wrong.”
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Sammie Macharia, a former administrator-general of MCSK, on the other hand, maintains that the music belongs to the artist regardless of the agreement entered into between the musician and the producer. He says it is the vocals that make music and that producers stake out their money on the performers without which there would be no music.
“Whereas in the recording contract music belongs to the producer, ownership falls on the musician when it comes to distribution,’ contends John Njagi, managing director of Music World.
He explains that if a producer hires back up musicians, pays for studio and production, mixing and recording of the music, then the producer, not the performer, owns the resulting music. He however reiterates that the type of contract entered into determines the owner of the music.
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Musician Wilson Kimama, whose stage name is ‘Retired General’, argues that lyricists are not recognised as musicians in Kenya.
“Music is when one writes words and puts them to melody and rhythm. When one just writes words, their writing is neither music nor is the writer a composer as composing applies to music, not words,” he says.”Copyright is silent on performers who accompany someone, whether a producer or fellow musician, on a music project.”
Experts argue that a distinction should be made between creative and executive producers of music. While the former is involved in the creative work, the latter simply provides funding but has little else in the creation of music. However, some producers combine both functions and this could have ramifications on music ownership.
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Creative producers could compose or commission musicians to compose, pay for the studio and supervise sound recording and mixing and only call musicians to provide vocals. In such a situation, explains ‘Retired General’ Kimama, natural justice demands that it belongs to the producer and not the vocalist who he compares to an electric conduit which cannot claim to own the electricity passing through it.
Such conduits are usually given a one-time payment or may be promised a certain percentage, say 10 percent, of the sales of the music.
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Producer Tedd Odongo Josiah of Audio Vault Studio who defines music as ‘elements of sounds put together melodically’, says ownership of music depends on the kind of agreement entered into between the producer and the performer.
“If a musician writes the lyrics and I produce him, we will jointly own the music,” he says.
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A producer who says he retains 90 per cent of the sales of the music he produces because he puts all his money in a project he is not even sure he will get back his money.
“If the music fails to sell then I lose all my investment,” he says.
But Macharia counters that it is upon producers to take the risk, fund projects, protect projects, promote projects and distribute projects without expecting to be paid for doing what they are supposed to do.
“To argue that you should take 90 percent of the proceeds from a composer is nothing short of exploitation,” Macharia says.
NB: Since the writing of this article in July 2000, little appears to have changed on the Kenyan music scene over the past two decades.
